Roger Ailes and the Fiction of “He Said/She Said”

Against the backdrop of the Republican National Convention last week, Fox News Founder and CEO Roger Ailes stepped down after former network personality Gretchen Carlson filed a sexual harassment lawsuit against him.

Carlson claimed that Ailes derailed her career after she rejected his sexual advances toward her.  Not surprisingly, Ailes and his defense team issued a strong denial and vowed to fight the lawsuit. Meanwhile, Fox News initiated an internal investigation of the harassment allegations.

He Said/She Said

When this story first hit the airwaves, many commenters offered that this would be a difficult claim for Carlson to prove. After all, everything that happened between the two of them took place behind closed doors so there simply was no way to tell who was telling the truth.  It would all boil down to a “he said/she said” situation.

As we know now, it didn’t actually turn out that way. The lawsuit quickly became a “he said/she said…and so did she… and so did she” situation as a number of other women came forward to recount their harassment by Ailes over the years.  Within a couple of weeks, Ailes resigned from the network and the lawsuit likely will be settled in the near future.

When a harassment allegation is reported, an employer should not jump to the conclusion that it is a “he said/she said” situation simply because the complaining employee cannot identify any witnesses. This ignores the fundamental reality that when one person claims something happened and the other denies it, one of them is probably telling the truth (or at least a more truthful version) and one of them is not.  The critical charge for the employer is to figure out which is which.

What to Look For

To determine which versions of events is more credible, the employer should first review the matter thoroughly with both parties (separately, of course). Ask them who witnessed the interaction and who might have been in the area when it occurred.

When interviewing the complaining employee be sure to ask “Who else do you believe might have experienced the same or similar behavior from the accused”? While harassers do not typically offend in front of an audience, the Ailes matter demonstrated that they do frequently repeat the same behavior toward multiple targets. Learning that one, two or even more co-workers experienced the same or very similar behavior will certainly lend credence to the allegations under investigation.

Review technology. The current state of electronic communication offers a multitude of options for conveying harassing or inappropriate thoughts.  Review the complaining employee’s text messages, Facebook posts and other electronic communications for glimpses of the accused employee’s behavior or intent.  By the same token, look at the accused employee’s devices to see if the complaining employee might have a different motive for coming forward, or if the offending behavior might actually be mutual and/or consensual.

Consider each employee’s past record. Obviously, you will want to know whether the accused employee has done this sort of thing before. Beyond that, has either employee been cited for behavior calling their integrity or honesty into question? Is the accusing employee on the verge of termination and perhaps using this as a way to stay employed?  Is there any other context that sheds light on the matter?

Making the Call 

In some cases, you still may end up not having a good feel for who is the more credible employee. In such instances, the best you can do is explain that the investigation failed to produce evidence of a violation of the harassment policy.  Advise both employees about the employer’s non-retaliation policy and encourage the complaining party to return if additional behaviors are encountered.

In other situations, you may uncover enough evidence to make an effective credibility determination and take appropriate remedial action.

Remember, a credibility determination is not guess-work but rather, the product of careful evaluation of all available evidence and of rational conclusions drawn from that evaluation.  If done properly, this process will carry the day in court and could protect the company and its workers from further harassment by an employee who benefitted from an ill-considered “he said/she said” determination.

Bottom Line

As in the Ailes matter, once an investigation begins, you never know what might happen. Employees often feel empowered to bring forward information that they kept quiet for fear of retaliation or because they doubted whether the employer would take action.  Be sure to give them that chance.

More often than not, “he said/she said” will give way to “I figured it out.”